Real estate agent didn’t disclose baby’s accidental drowning in hot tub to woman before she bought home in Keswick.

Anita Foss stands in front of her former home in Keswick which she bought without being told a toddler had drowned there.

By:Tony Van AlphenStaff Reporter, Published on Thu Nov 29 2012

A real estate agent has been warned by the industry’s regulator for not disclosing the fact a baby had accidentally drowned on the property.

It marks the second time in two weeks that a case has surfaced where the regulator issued a warning against an agent for not telling a pending home buyer their house was the scene of a tragedy.

Homeowner Anita Foss said Wednesday she was “appalled” the Real Estate Council of Ontario gave only a warning plus a requirement to take an education course after the agent sold her a home in Keswick without saying the house was the site of a “stigmatizing event.”

“It amounts to no more than a slap on the wrist with complete disregard to the emotional and financial cost to me,” said Foss, a 65-year-old retiree.

“I take this as a personal affront and consider it disrespectful not only to me but to the public as a whole, allowing this person to continue the business of selling property.”

Stigmatizing events such as a murder, death or other tragedy could have an effect on a home’s value because some consumers would have a psychological aversion to living there or want a discount. There is an obligation under the code of conduct of the Real Estate and Business Brokers Act for realtors to disclose such information.

Although the council says complaints about non-disclosure involving stigmatizing events are rare, some lawyers think consumers may be becoming more aggressive in testing the doctrine of caveat emptor or buyer beware.

Bruce Matthews, the council’s deputy registrar, said he could not comment on any specific case but added sanctions can range from warnings to major fines, suspensions or licence revocation depending on the circumstances.

Matthews said consumers must take legal civil action themselves to recover any damages for non-disclosure under the code of conduct because the council has no authority to pursue such claims. At the same time, the council can and does prosecute offenders of other act breaches, he noted.

In the other recent case, a Bowmanville couple sued a real estate firm, an agent and a home’s former owner for allegedly failing to reveal that the house was the scene of a gruesome double murder several years before they bought it.

In that claim, which must still be proven in court, the couple is seeking $450,000 in damages plus costs. The wife said she suffered severe depression, sleep and mood disorders while her husband indicated their relationship suffered.

Last month, the council issued a warning against the agent in that sale for deliberately withholding a material fact.

Meanwhile, Foss said, she will pursue her case in small claims court and seek payment for extra costs including fees in the house’s sale and purchase of another home in Newmarket this summer.

The council ruled earlier this month that agent Kim Imough did not treat Foss ”fairly and honestly” or make her best effort to prevent an “unethical practice” contrary to the act. It made the ruling after Foss complained Imough did not disclose that a 1-year-old boy drowned in a hot tub on the Keswick house’s backyard deck three years ago.

“This information was known to you; therefore you knowingly made an inaccurate representation with respect to the trade and your conduct was unprofessional as a result,” the council said.

Imough, an agent with Re/Max Landmark Realty, would not discuss the case.

“I don’t want to talk to you,” she said before hanging up the phone.

Without knowing about the tragedy, Foss bought the house for $330,000 last fall and then received information about the death from her own agent who had discovered the omission.

“I would not have purchased the property had I known,” Foss added. “It may seem an extreme reaction but especially in the death of a small child, it is even worse.

“Every time I looked out of my window, it was a constant reminder of the tragic situation that took place here. It really sickened and saddened me.”

Foss said she sold the house for $355,000 this summer but disclosure of the death and the removal of the tub reduced the price from $364,000. Furthermore, Foss said she paid $370,200 for the Newmarket home that is smaller and does not have the same features as the Keswick house.

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